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19.01.2005   Extract from Review of the Situation of National and Ethnic Minorities in the Selected Member States: Latvia

I. Preliminary Remarks

 

The principal problem of the legal protection of minority rights lies in the fact that no international legal document provides for a clear cut definition of minority.[1] The lack of definition of minority produces significant disadvantages for the concrete minority groups in the states which might not be even able to achieve a formal legal recognition of their minority status which consequently, of course, leads to an inadequate legal treatment of these groups.[2]

 

For the purpose of this paper a term national minority will be used as it has been defined by the Parliamentary Assembly of the Council of Europe in its Recommendation 1201(1993). "National minority is a group of persons who reside on the territory of a State and are citizens thereof; display distinctive ethnic, cultural, religious or linguistic characteristics; are sufficiently representative, although smaller in number that the rest of the population of that state or of a region of that state; and are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language."

 

It has to be stressed that the term national minority excludes all other types of minorities such as ethnic, religious or the similar. This term should not include non-nationals who reside either permanently or temporarily on the territory of a state. However, there are some border cases where nuances between national or ethnic minorities are thin, especially as far as the legal consequences (especially rights) following the membership in a group of national or ethnic minorities are considered. In this context the position of Roma is the most contentious, since it usually happens in many states that Roma ethnic communities by far outnumber the other minority groups which are considered as national minorities. However, if national minority is understood as a specific minority group which is separated from its own nation by a border and finds itself not in its own homeland due to the prevalent historical reasons, Roma can not be considered national minorities, since there is no Roma nation or a Roma national state.

 

Nevertheless, this distinction between ethnic minorities - such as Roma people - and national minorities, which are sometimes in some countries even further divided to autochthonous[3] and alochthonous, is in practice not always clear and in it is in different countries applied differently. In this paper the notions national and ethnic minorities will be applied as distinctly and as correctly as possible. Where there is a difference in a regulation between ethnic or national minorities, this will be stressed.

 

N.B.: This paper analyzes the state of protection of minorities only in the ten new EU member states. This is just due to the methodological approach. The old member states should be analyzed as well, since some data about these countries trigger the reasons for concern.[4]


5. LATVIA


 

a) Factual state of affairs

 

Structure of the Latvian population is as follows: 60.3% Latvians, 28.4% Russians, 3.6%

Belarussians, 2.3% Poles, 2.2% Ukrainians, 1.3% Lithuanians, other 2% (2002).[5]

Latvia has one of the highest percentage of minority population in the new member states, that is around 42% of the 2.4 million population, of which almost a third ethnic Russians. There are inherent tensions between Latvian majority and Russian minority which has to be understood in the light of the Soviet legacy of forced Russification, ethnic segregation and repression during 50 years of occupation which has done irreparable damage to entire generations of Latvians and Russians in Latvia.[6] The demographic contours are essentially linguistic rather than ethnic – the population breaks down to approximately 60 percent Latvian speakers, with the remainder mainly Russian-speakers. A lingering consequence of Soviet language policy is asymmetric bilingualism, wherein almost all Latvians are bilingual speakers of Latvian and Russian, while many Russian- speakers remain monolingual speakers of Russian.

The number of Roma in Latvia is estimated to be between 13,000 –15,000. As some reports show the Roma people face many problems in the fields of employment, education, housing, social benefits and health care. There are reports of police violence against Roma, but no information on national case law in this respect was reported. It was observed that in none of the areas where the problems persist have the responsible State authorities showed a special interest or understanding towards Roma.[7]  Perhaps the greatest problem of Roma in Latvia is that they are predominantly undereducated, which prevents them from full integration in the society and it leaves them on its brink.[8]

 

b) Legal regulation

 

i) International law obligations

Latvia has signed, but not ratified the Framework Convention for the Protection of National Minorities. However, Latvia has neither signed nor ratified the European Charter for Regional or Minority Languages.[9]

 

ii.) National legislation

The Article 114 of Latvian Constitution provides that persons belonging to ethnic minorities have the right to preserve and develop their language and their ethnic and cultural identity. The Law on Unrestricted Development of National and Ethnic Groups of Latvia and the Rights to Cultural Autonomy was passed on 19 March 1991 but according to the Report of the Open Society Institute (OSI) this law has not had any real practical effect due to its prevailing declarative nature. It has not provided any concrete mechanisms for the implementation of its principles and goals.[10]

Latvia has very strict legal regulation of the use of official language. The Law on State

Language envisages that all documents submitted to state institutions shall be in the state

language only or shall be accompanied by a certified translation into the state language. The Law declares that the integration of minorities into Latvian society is a main objective of the law, and acknowledges the right of minorities to use their native or other languages. However, use of minority languages in private is not unlimited – state intervention into the private sphere to regulate language use is envisaged to a degree determined by a “legitimate public interest". Amendments to the Administrative Violations Code introduced on 14 June 2001, stipulate fines for a variety of offences regarding the failure to fulfil legal requirements in the use of Latvian, including “disrespect towards the state language ”.[11]

The acts regulating education[12] have also been criticised especially by the members of Russian minority who claim that the original broad rights of minorities in the sphere of education have narrowed and the Law on Education provides that after 2004 all public secondary and vocational education must be in the state language only, which means that existing minority language secondary schools have to switch to instruction in Latvian.

The Law on Citizenship and the Law on the Status of Former Citizens of the USSR who are not Citizens of Latvia or any other State ("Status Law") have been repeatedly under fire for creating a special legal category of non-citizens. These are predominantly people of Russian origin. This Status Law provides for their rights.

Article 91 of the Constitution (Satversme) provides that “everyone in Latvia shall be equal before the law and court. Human rights shall be exercised without any discrimination”. The equal rights principle and non-discrimination rule subsequently is repeated in most major laws such as Criminal Procedure, Administrative Process, Civil Procedure, Labour Law.

However, this prohibition of discrimination applies only to public sector if not expressly specified differently.

 

c) Institutional protection

 

i.) In general

The Latvian government has created a post of the Minister for Integration Affairs through whom the government furthers dialogue with the minority on a high political level.[13] Primary role for the protection of human rights, including the rights of the minorities, lays with the courts. Thus the Constitutional Court of Latvia has just recently declared the restrictions on broadcasting in a minority language unconstitutional. The National Human Rights Office (NHRO) was established by the Law on the National Human Rights Office is an ombudsman-type institution. Among the various roles of the Office the most important are: providing free legal advice, taking immediate measures in case of human rights violations, conducting analyses in legislation, providing objective information to the public on the rights and obligations of individuals as envisioned by Latvian legislation. There is a good co-operation between the Office and the Human Rights Commission of Parliament in the discussions on the draft legislation. However, OSI report emphasises that the Office has not fully utilised the powers granted to it.[14] Improving measures have also been taken in various ways in the field of education.[15]

 

ii.) Special institutional protection of Roma

There is no special institutional protection for Roma who can use the generally available means of protection of their rights.

 

d) Assessment

 

Despite a very heterogeneous structure Latvian population and consequently present tensions Latvia has managed to live with diversity peacefully. However, the EU network of independent experts points to current inexistence of any specific plan of action identifying special measures to be taken in relation to different groups of persons so as to ensure the equality in their enjoyment of rights, which calls for the adoption of such measures as soon as possible.

It should be stressed that Latvia should as soon as possible ratify the Framework Convention on the Protection of National Minorities, and to implement its provisions, especially those that concern, as OSI report stresses, the use of minority languages before public authorities, education through minority languages, and privately owned broad- casting in minority languages. Overall the government should pay particular and more attention to the contents of education programmes: studies of the culture and history of minorities, including Roma, should become mandatory, human rights education in schools could be a way to deal with the problems of intolerance.[16]


IV. CONCLUSION

 

Protection of national minorities from the EU perspective.

 

The protection of national minorities is unsatisfactorily regulated in the international and in the national legal orders. EU is no exception in this field.

 

There is a Framework Convention on the Protection of National Minorities produced under the auspices of the Council of Europe, but not even this most basic and fundamental document is not ratified by all the European states, including EU Member States.[17] The existing international legal regulation is often vague and opaque which of course works as a disadvantage for national minorities, who are more or less left to the protection at a discretion of the states. Since the majority of the population and their representatives within the national state have never been very keen to ensure the highest level of protection to national minorities due to usually emotional historical reasons, the need for some minimum international standard of protection of national minorities is therefore clear and compelling.

 

This is a fortiori so in the case of the European Union which is by and large not based on the international law discourse, but it rather forms an autonomous and therefore more penetrating and efficient legal system. If the international mechanisms for the protection of minorities prove to be inadequate and inefficient, EU legal system as more structured and of different nature should provide firm and reliable grounds for at least minimum protection of national minorities.

 

The old-fashioned argument that the protection of minorities is a sovereign right (and duty) of the national state with which no one should interfere, nowadays, and especially within the EU system, which does not consist just of national states, but of their citizens as well, can not hold water.

 

Therefore EU has a duty to embark on a difficult task to structure the minimum standards of national minorities' rights protection. However, it seems there is still a long way to get there. Whereas the Commission, in co-operation with other NGOs, regularly monitors the adherence to the principle of non-discrimination, which was especially so in the case of countries taking part in the recent enlargement, there is no comprehensive normative regulation of the status of national minorities at the EU level.

 

The measures that EU has so far taken relating to the protection of minorities can be divided into four groups, i.e. measures of political character undertaken mainly by the European Parliament characterized by normative approach, measures undertaken by the European Commission, Council and the Parliament characterized by political approach, measures taken within EU but directed to external issues, non-minority decisions which have some implications on the status of minorities.[18]

The field of minority protection in the EU is characterized by the lack of normative competence, therefore the measures taken were either purely normative, or of technical nature expressing itself in the financial support for the minorities or with them affiliated institutions.[19]

 

EU first explicitly articulated the need for the protection of the minorities as a binding principle for the candidate countries at the Copenhagen Council in 1993 where the so called political criteria for the accession of the new countries were laid down. Hence, the candidate States were required to demonstrate that they ensure minority protection in order to accede to the EU. This has led to intense scrutiny by the EU institutions, in particular the Commission, of the situation of vulnerable minorities in the candidate States. The Commission has produced annual Regular Reports evaluating the progress of each of the candidate countries in fulfilling the so-called ‘‘Copenhagen criteria’’: the political and economic criteria and ability to take on the obligations of membership (acquis).[20] The Copenhagen criteria were later included in the Amsterdam treaty and thus into the primary law, except for the requirement of the minority protection. The omission of the latter can not mean that status of minorities is clearly settled and unproblematic within EU, but it rather shows the reluctance of the Member States to bring this issue within the Community or even EU framework.

That speaks of a rather unsatisfactory situation according to which the respect for minorities inside the Communitarian system is still limited only to non-legally binding resolutions and financial incentives, whereas in the external relations EU and its Member States take a much stricter approach.[21]

 

This discrepancy in the attitude shows a duality respect for minorities, which it could hardly be said to be satisfactory and grounded into some objective reasons. One would expect from the EU to adhere to the same or even higher standards of minority rights protection that it demands from the third countries.

However, there has been much improvement in the years following the adoption of the

Maastricht treaty, since the EU received some competencies in the field of culture and education which could be prudently used for the protection of national minorities. Another opportunity for the enhancement of the position of national minorities is the regional politics that is gaining on the importance within EU and its is properly institutionalized in the Committee of Regions and Local Authorities.

 

Article 13 of TEU prescribes inter alia that Council, acting unanimously on a proposal from the Commission and after consulting European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This Article is an important step forward and it has already given birth to two directives. However, the prohibition of discrimination against minorities is only a starting point, since their minority status inherently calls for positive action, i.e. affirmative action. The aim should not be just to protect the minorities against discrimination, they should be even helped to preserve their unique identity by using active and affirmative-action measures.

 

The Charter of Fundamental Rights of the European Union in its chapter three on equality prescribes that everyone is equal before the law,[22] proscribes inter alia discrimination based on the membership in the national minority[23] and proclaims that EU shall respect cultural, religious and linguistic diversity.[24] As one can see all these measures are very general in their nature and act as a prohibition, i.e. for example national minorities should not be discriminated against.

 

Beside that the inclusion of a special provision on the minority rights protection

was refused, despite the fact that more than dozen proposals have been presented.[25] This again shows that a climate for the minority rights protection is in general not very positive among the Member States. However, the position of national minorities, due to their minority status and consequently their inherently vulnerable position demands positive action on the EU level.

 

The Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin goes into that direction when it specifies that the governing principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin. That means that affirmative action in the Member States is allowed.

 











[1] Not even the Council of Europe's special Framework Convention for the Protection of National Minorities, and even less the European Convention on Human Rights or the recently adopted EU Charter of Fundamental Rights contain a definition of the notion of minority.




[2] This situation is nicely illustrated by the case: Gorzelik and Others v. Poland (Application no. 444158/98).




[3] Autochthonous national minorities are those which have historically been present in the territory of a certain state. They are considered to be the natives, the indigenous people. Alochthonous minority groups are those groups which have settled in the territory of a certain state only recently and do not have firm historical ties with that territory which could make them native or indigenous.




[4] For example: as the official data of the Council of Europe show France has not even signed nor ratified the Council of Europe Framework Convention for the Protection of National Minorities.




[5] Data According to the Latvian Center for Demography: http://www.popin.lanet.lv/en/index_eng.html




[6] Ojars Kalnins, Desegregating Latvian School System Ends Devisive Legacy, The Baltic Times, 2.9.2004.




[7] EU network of independent experts, Report on Latvia 2003, at. 39.




[8] EU network of independent experts, Report on Latvia 2003.




[9] http://conventions.coe.int/Treaty/EN/cadreprincipal.htm




[10]See OSI report, available at: http://www.eumap.org/reports/2001/minority/sections/latvia/minority_latvia.pdf




[11]See OSI report, available at: http://www.eumap.org/reports/2001/minority/sections/latvia/minority_latvia.pdf




[12] These are: The Education Law, The General Education Law and the Professional Education Law.




[13] EU network of independent experts, Report on Latvia 2003, at. 39.




[14] See OSI report, available at: http://www.eumap.org/reports/2001/minority/sections/latvia/minority_latvia.pdf




[15] EU network of independent experts, Report on Latvia 2003.




[16] EU network of independent experts, Report on Latvia 2003.




[17] 109 The EU member states which have not even ratified the Framework Convention are: Belgium (signed, but not ratified), France (not even signed), Greece (signed, but not ratified), Latvia (signed, but not ratified), Luxembourg (signed, but not ratified), Netherlands (signed, but not ratified) ; The Charter for Regional and Minority Languages has not been ratified by: Belgium, Czech Republic (signed, but not ratified), France (signed, but not ratified), Greece, Estonia, Italy (signed, but not ratified), Irland, Latvia, Lithuania, Luxembourg (signed, but not ratified), Malta (signed, but not ratified), Poland (signed, but not ratified), Portugal. Source: http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?MA=6&CM=7&CL=ENG




[18] Ibidem, at 1.




[19] Ibidem, at. 6.




[20] http://www.eumap.org/topics/minority




[21] Toggenburg G., A Rough Orientation Through a Delicate Relationship: The European Union´s Endeavours for (its) Minorities, European Integration online Papers (EIoP) Vol. 4 (2000) N. 16, http://eiop.or.at/eiop/texte/2000-016a.htm, at. 12.




[22] Charter: Article 20.




[23] Charter: Article 21.




[24] Charter: Article 22.




[25] Toggenburg, cited supra note , at 17.

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